While the desire to remove presidential term limits was the immediate trigger for the October 2014 popular uprising, the drafters of the Burkinabe Constitution have attempted to address the root causes of the problem by limiting the powers of the presidency and enhancing the autonomy of the legislature and the judiciary – writes Sawadogo Lamoussa.

After long delays, on 27 December 2017, the Constitutional Commission of Burkina Faso formally submitted the final draft constitution to the President du Faso. The draft largely retains the content of the initial draft released in January 2017 which was subjected to wide public consultation in all regions of the country and with the Burkinabè diaspora. With the content of the draft constitution largely approved by all crucial political actors, the debate has now focused on the modality of adoption, in particular on the desirability of holding a constitutional referendum.

The draft constitution unequivocally responds to the immediate triggers of the October 2014 popular revolution that overthrew Blaise Compaore, the then president, following his attempt to amend the constitution to remove presidential term limits. Accordingly, it reestablishes the two five-year presidential term limit, which is now included as part of the unamendable provisions. The draft constitution also retains the right to civil disobedience against all power that does not derive its source from the Constitution. The constitutional review process also provided a platform to debate fundamental issues underlying the Burkinabe constitutional and political framework, in particular the presidential dominance of power.

Strengthening the semi-presidential system of government

Despite the nominal return of multi-party democracy and the institutional separation of powers in the 1991 Constitution, a prominent feature of Burkina Faso’s political history has been the dominance of the office of the president. This dominance was a reflection of the formal constitutional powers of the president, which accentuated his informal and extralegal authorities. As such, the popular revolution of 2014 was an opposition not just to the regime of former president Blaise Compaore, but also a rejection of the dominance of the presidency itself and the constitutional framework that made it possible. Indeed, one of the crying points has been that the President du Faso appeared to be an elected ‘monarch’.

The debate has now focused on the modality of adoption, in particular on the desirability of holding a constitutional referendum.

Accordingly, a crucial popular demand and therefore a test of the task of the Constitutional Commission was to tame the presidency. After considering various options, including a shift to a parliamentary system, which was mostly supported by the late speaker of the National Assembly, the Commission opted for the retention of the semi-presidential regime with some modifications to check the powers of the president. While a prime minister exists in the current constitution, he or she is largely a passive actor with limited role in policymaking and in constituting crucial state entities. Although the president will still appoint the prime minister from among the group with a legislative majority, and may remove her or him ‘in the superior interest of the nation’, the draft constitution requires higher levels of involvement of the prime minister in the definition of the general policies of the state. When the Prime Minister comes from a parliamentary majority other than that which supports the head of state, both of them determine by consensus the broad orientations of policies in the best interests of the nation. In the absence of consensus, the government determines and conducts the policy of the nation. The draft constitution also provides that the prime minister will enjoy enhanced powers of nomination, after deliberation in the Council of Ministers, to civilian posts other than those falling within the competence of the president as determined by law.

The draft Constitution creates a better balance between the prime minister and the President du Faso.

Overall, while the process of nomination, removal and line of accountability of the prime minister largely remain the same as in the current constitution, the draft Constitution creates a better balance between the prime minister and the President du Faso on the one hand, and the National Assembly on the other. The President du Faso appoints, after consultation with the National Assembly, civilian and military functionaries of strategic importance for the nation, as will be determined in the law. In the current Constitution, consulting the parliament before an appointment is required only for some strategic functions. Moreover, Parliament will control its own agenda in consultation with the government; unlike in the current Constitution where the executive controls the parliamentary agenda of issues. The efforts towards checking the powers of the president in Burkina Faso contrast with attempts in other countries, such as Mali and Burundi, where draft reforms have proposed the enhancement of presidential powers.

A new Constitutional Court

A crucial institutional transformation has been adopted in relation to the constitutional arbiter. Under the reforms, the current Constitutional Council will give way to a Constitutional Court, which will be operational two years after the entry into force of the constitution. The implications of the shift will have bearing beyond the change in name, particularly reducing the role of the president in the selection of the members. The new Court will have nine members: two of them will be nominated by the President du Faso, two by the speaker of the National Assembly, two professional judges appointed by the Supreme Council of the Judiciary, a lawyer appointed by the bar, a higher education teacher-researcher in public law designated by her or his peers, and a representative of human rights and democracy organizations designated by her or his peers. The judges will serve for a non-renewable term of nine years. However, to ensure continuity, a third of the members will be replaced every three years, with the exception of the president of the Court.

The draft constitution significantly reduces the role of the president in the selection of the members.

The Court retains all its powers, including decisions on the validity of constitutional amendments, the validity of presidential and parliamentary elections, and the review of laws after their enactment. Decisions of the Court are binding on all entities and not subject to any appeal. The Court will be accessible to ordinary citizens in relation to cases pending before regular courts.

Considering the crucial role of the Court in the interpretation of the Constitution and in approving the validity of presidential elections, the changes are fundamental in enhancing the independence of the Court. Indeed, in 2005 the Constitutional Council allowed former president Compaore to run for a third term despite the constitutional two term limits. The establishment of an independent and strong court can create the conditions necessary to safeguard the nascent democratic dispensation.

A reorganized Supreme Council of the Judiciary

The draft Constitution provides that the Supreme Council of Magistracy will be composed of 23 members with voting rights: 14 magistrates, four non-magistrate designated by the President du Faso, three persons designated by the speaker of the National Assembly, one representative of the Bar, and one representative of civil society organizations defending human rights. It may also include members with consultative rights under conditions set by law. Importantly, the President of the Republic and the Minister of Justice, who are the chair and vice-chair of the Council under the current constitution, will no longer be members. The first president of the Court of Cassation is the representative of the judiciary, and will chair the Council.

The President of the Republic and the Minister of Justice, who are the chair and vice-chair of the Council under the current constitution, will no longer be members.

After the popular uprising, the judiciary was seriously criticized. The judiciary defended itself by invoking the interference of other organs in its functioning. A pact on the renewal of Burkinabe justice was therefore developed during the transition period. The incorporation of crucial elements of the pact into the draft Constitution will contribute to enhancing judicial independence.

Abolition of the High Court of Justice

In a related move that will enhance the unity and independence of the judicial branch, the draft constitution abolishes the High Court of Justice, an ad hoc organ composed of parliamentarians elected by the National Assembly, and magistrates in charge of prosecuting the president of the republic and members of cabinet for serious offenses. The Court was much discredited in 2017 when it was constituted to hear cases relating to former officials who were overthrown in the popular insurrection of October 2014. The operationalization of the High Court of Justice allowed the citizens to understand its composition, which is very political. The presence of politicians in the Court, who need not have a background in law, meant that the body may not render decisions solely based on law and following principles of fair trial.

Under the reforms, former ministers and presidents of Burkina Faso accused of infringing relevant laws will be prosecuted before the Criminal Chamber of the Court of Appeal. In such circumstances, the Chamber, in addition to the professional judges, will include four parliamentarians as jurors. The constitutional changes will lead to a single judicial system for all civilians, which could strengthen the sense of equality of responsibility for crimes regardless of the status of the accused.

The draft constitution abolishes the death penalty.

The draft Constitution does not provide information on the mode of selection of the parliamentarians and the rationale for their membership in a criminal court. However, during the public consultations, some citizens were not always supportive of judges, criticizing some for behaving like ‘extraordinary people’ in a society that did not need it. For them, this excess of independence of judges had to be reframed. It went in line with the remarks made by the President du Faso and the late speaker of the National Assembly, who openly declared, when the regime faced a strike of magistrates at the beginning of its mandate, that ‘the people did not emancipate from the power of guns for the power of the judges’. Nevertheless, unless the retention of parliamentarians as jurors is intended to give some political perspectives to the decision of the criminal chamber, it is unusual to have politicians in a courtroom.

Representation and right to vote of the Diaspora

The constitutional reform process has given voice to the diaspora who managed to secure direct political representation and the right to vote. Following consultations on the draft constitution with the diaspora, and in recognition of their socio-economic contribution, the draft constitution guarantees the right to representation in the National Assembly of the Burkinabe living abroad. Under the current constitution, the diaspora were granted representation in the senate, which was never established. Having a strong community living abroad and not involving them in the management of the affairs of the country is to skew the democratic game. The draft Constitution provides that a specific law will be adopted to cover the number and the modalities of diaspora representativeness in the National Assembly. The diaspora will be granted the right to vote in presidential and parliamentary elections from 2020.

Justiciable socio-economic rights, No death penalty

Two of the most contentious substantive issues were related to the death penalty and the issues of sexual orientation minorities. The draft constitution abolishes the death penalty. Because of the lack of consensus, the Constitutional Commission simply omitted the issue of sexual orientation minorities. In response to strong lobbying from civil society organizations, the draft constitution expands the list of socio-economic rights, including rights to healthy food, access to drinking water and sanitation, energy and digital connectivity. Crucially, the rights will henceforth be judicially enforceable.

Role of traditional Chiefs

Traditional chiefs continue to be critical actors in the socio-political life of the people as well as state institutions. Indeed, the involvement of chiefs in the negotiations to avoid a clash between mutinous soldiers and loyalists of the former regime that unfolded during the last failed coup d’état was notable. This is despite the fact that the preamble of the current Constitution merely recognizes the moral authority of traditional institutions without giving any details. Their practical significance led to considerations towards the proper constitutional recognition of the role of traditional institutions. Ultimately, the Constitutional Commission opted to maintain the constitutional status quo, partly because of concerns that their constitutional regulation may undermine the principle of secularism. Since Burkina Faso was not historically a Christian nation, it was necessary to take into account Islam, which is the other dominant religion. In this religious melting-pot, to which we must add the many customary and traditional practices of which the traditional chiefs are the guarantors, certain questions remain sensitive. The country tries to put the religions on the same footing and treats the issue with a lot of precaution. A greater role for customary and traditional leadership in the draft Constitution would have given the impression that the state is taking more action in favor of that institution than the others.

Since the submission of the draft Constitution to the President of Burkina Faso, the political class and constitutional experts have been engaged in a debate on the modalities of adoption of the new Constitution. Under the current constitution, all constitutional amendments approved in parliament are referred to a referendum except in cases where parliament adopts it with a three-fourths majority. The ruling party would prefer to pass the revisions through parliament, where it could garner the supermajority necessary to avoid a referendum. While there is confidence that the draft constitution would be approved in a referendum, it considers the extensive public consultations adequate to confer legitimacy on the draft constitution. Hence, the parliamentary procedure is seen as sufficient. In addition, this would save resources which could be disbursed to meet other demands. On the other hand, opposition groups and some constitutional experts have urged the organization of a referendum regardless of the supermajority achieved in parliament in order to enhance the legitimacy and popular ownership of the constitution.

The debate is on whether the regular parliamentary procedure is sufficient to confer legitimacy on the constitution, or whether constitutional referendum is necessary.

During his 2018 New Year's message to the people of Burkina Faso, the President of Burkina Faso declared that a consultation will be organized concerning the modality of adoption of the new constitution. As the draft constitution enjoys broad political support, there appears to be no doubt among the political actors that it would be approved in a referendum. Nevertheless, in the unlikely scenario that the draft constitution is rejected in a referendum, after its approval with a three-fourth majority in parliament, it is not clear if the draft would be considered approved (as a referendum is not constitutionally required in such cases). This creates legal uncertainties which need to be considered.

Overall, the draft constitution is the outcome of unprecedented levels of popular consultations and political consensus. It also represents a significant improvement in terms of its substantive content as well as institutional arrangements. To this extent, it may be considered the most notable consequence of the 2014 popular uprisings. The long term success of the constitution will be judged in terms of the extent to which it will contribute to political pluralism, competitive democracy, government stability and above all in enhancing inter-institutional balance to tame the cult of presidential dominance.

Sawadogo Lamoussa is a Human Rights Advisor at the Ministry of Justice and Human Rights of Burkina Faso.

Disclaimer: The views expressed in Voices from the Field contributions are the author's own and do not necessarily reflect International IDEA’s positions.